U.S. Braces for a New Test by Branch Davidians, in Court

By RICHARD PEREZ-PENA,

Published: April 30, 1993

WACO, Tex., April 29—
Prosecutors building their case against the surviving members of the Branch Davidian sect face a formidable set of hurdles in proving that any of them committed any crimes, legal experts say.

The prosecutors will have to work around missing evidence, dead witnesses and contradictory stories, and they may be forced to rebut assertions of self-defense and brainwashing by the sect leader, David Koresh. The defense is almost certain to argue that everything that went wrong was the Government's fault -- from the Feb. 28 shootout in which four agents of the Bureau of Alcohol, Tobacco and Firearms died, to the April 19 fire that killed as many as 86 cult members.

"These trials will be very unpleasant for the Government, no matter what happens," said Gerard E. Lynch, a Columbia University law professor and a former Federal prosecutor. "The defense will clobber them with every mistake everyone ever made in pursuing the case. They will make it a trial on the Government's tactics." Five Facing Charges

So far, five people have been charged with conspiracy to murder the Federal agents who were killed on Feb. 28. Two others, who were captured that day, have been charged with attempted murder of a Federal agent. Three of five who face conspiracy charges are also accused of weapons violations, as is a fourth sect member who was not in the compound during the 51-day siege.

As the Federal prosecutors assemble their cases, many questions central to the case have not yet been answered, including these:

*Does the Government have any evidence indicating who pulled the triggers or who could have started the fires inside the compound?

*How many of the 25 surviving adult residents of the compound will be prosecuted and for what crimes?

*Will any of the cult testify for the Government?

*Will the Justice Department, which has handled the prosecution so far, turn any portion of it over to Texas state prosecutors?

Federal and state officials refuse to discuss the case or disclose what evidence they have, and investigators are still sifting the ashes of the group's compound 10 miles from here to see what can be gleaned as evidence. But in interviews, former prosecutors, former Government officials and lawyers for cult members offered several scenarios, each strewn with potential traps for the prosecution.

Defense lawyers say the cult members will claim in court, as they already have, that the Feb. 28 raid on the group's ramshackle home by the Federal Bureau of Alcohol, Tobacco and Firearms was unnecessary and poorly planned, that bureau agents fired the first shots and that they lied later to cover their own mistakes. U.S. to Use Videotapes

Some defendants might argue simply that the Government had not proved its case. If that appears unlikely to work, they could claim that their perceptions were twisted by Mr. Koresh, who is thought to have died in the fire.

Lawyers said the Government would rely on videotapes of the shootout, the siege and the fire, an exhaustive analysis of the evidence and, perhaps most important, a divide-and-conquer strategy. Some Branch Davidians will be offered plea bargains in return for their testimony against their former comrades, they said, while the Government weighs the legal and political pitfalls of taking each case to trial.

Attorney General Janet Reno is likely to have a hand in conducting the case. "I would certainly expect that at the very least, she would be fully informed in advance of what they propose to do," said Elliot L. Richardson, who was Attorney General under President Richard M. Nixon.

Because of the enormous attention given to the case and the criticism of the way it was handled by the tobacco and firearms bureau and the Federal Bureau of Investigation, Ms. Reno has a sizable stake in seeing "that this is done right and straight," Mr. Richardson said.

Perhaps the greatest challenge for the prosecution will be to prove who did what. Court documents indicate that in the case of the two Branch Davidians charged with attempted murder of Federal agents on Feb. 28, the agents will be able to identify the people who shot at them.

Federal agents videotaped both the initial gun battle and the final confrontation that ended in disaster. Officials will not say if the tapes show conclusively who fired at the agents or set the fire.

A former senior Justice Department official who spoke on the condition of anonymity said it was significant that Branch Davidians had been charged with conspiracy to murder but not accused of firing a fatal shot. "It suggests that either they don't know who did it, or they know and the people are dead," the official said.Important physical evidence, like fingerprints and walls with bullet holes, was probably incinerated.

The Branch Davidians' cache of firearms probably survived the blaze, though pieces of them may have been damaged, according to Patrick M. Kennedy, author of several books on fire investigations. It takes a sustained temperature of 2,600 degrees Fahrenheit or more to melt a gun, and the fire at the compound probably did not exceed 2,000 degrees, Mr. Kennedy said.

The weapons are central to charges that the group illegally converted semiautomatic assault rifles to fully automatic machine guns. Inside Cooperation Reported

If the physical evidence against the Branch Davidians is weak, it is crucial for the prosecution that members of the group testify against the others. Court documents indicate that at least one person has cooperated with prosecutors already, but it is unclear how valuable that assistance has been. "Right now, the prosecution is sizing up what they have against whom, doing psychological profiles of the defendants and trying to figure out who is likeliest to crack if pressured," Mr. Lynch said.

But Dick DeGuerin, who was Mr. Koresh's lawyer and expects to be an adviser to the defense, said such tactics would not work. "The Branch Davidians still believe they were right and their common enemy is the A.T.F.," he said.

Mr. DeGuerin, of Houston, is considered one of the elite trial lawyers in Texas. He has recruited other highly regarded lawyers to represent some of the surviving cult members. "Dick's as good an advocate as there is," said Dan Cogdell, the lawyer for Clive J. Doyle, one of nine people who survived the fire.

To prove a conspiracy, the prosecution needs either a witness to the discussions that took place inside the compound or tape recordings of those conversations, experts said. An undercover agent of the firearms bureau spent time inside the structure and was there the night before the Feb. 28 raid, but it is unclear what he knew. Federal agents used some kind of electronic device to eavesdrop on the compound, but they have not revealed what was heard.

If none of Mr. Koresh's adult followers prove to be a cooperative and valuable witness, the Government could fall back on the memories of the 21 children who were released from the compound during the standoff. Officials have not said whether they expect to call children as witnesses, but defense lawyers consider it a strong possibility. The law does not shield children from being forced to testify against their parents.

If the case against the defendants is strong, they are more likely to blame the Government or Mr. Koresh, say experts and lawyers involved in the case.

Officials of the firearms bureau at first maintained that the Feb. 28 raid had been necessary in part because Mr. Koresh was a recluse and could not be easily captured. But local residents said that the cult leader had frequently left the compound, and defense lawyers contend that Federal agents were aware of that fact.

"The military-type attack was totally unnecessary," said Jack Zimmermann, who represented Steve Schneider, one of Mr. Koresh's top lieutenants, who is also presumed dead. Agents said they had been ambushed by the Branch Davidians, but "everyone inside says A.T.F. fired first," Mr. Zimmermann said.

Several lawyers said they expected to see a defense of self-defense, and possibly a claim that residents of the compound were unaware that the attackers were law-enforcement officers. Defendants and their lawyers also say that the Government was responsible for the fire -- that in the final tear-gas assault on the compound a F.B.I. tank knocked over a lantern. Arson investigators brought in by the firearms bureau say the blaze was intentionally set by people inside the structure.

If faulting the Government alone does not work, cult members may claim that they were brainwashed by Mr. Koresh. Privately, some defense lawyers agreed.

Mr. Lynch said defendants would combine testimony that Mr. Koresh had controlled their minds with testimony depicting life in the compound, where food was scarce and cultists were bombarded at night with loud noises and bright lights, courtesy of the F.B.I. "They'll say: 'The bad guys were trying to make us nuts and the good guys were trying to make us nuts. Is it any wonder we were nuts?' " Mr. Lynch said.

Photos: In the initial raid on Feb. 28, an unidentified Federal agent was videotaped going down after bullets burst through the wall and window of a building in the compound. Four agents were killed. (Agence France-Presse); Although they are in custody and their court appearances have begun, surviving members of the Branch Davidian sect in Waco may prove very hard to prosecute. Some of those arrested are, from left, Oliver Gyarfas, Brad Branch, Kathryn Schroeder, Graeme Craddock, and Remos Avraam, rear, with Derek Lloyd Lovelock. (Reuters)